The opinion of the Advocate General in Joined Cases Frank Peterson v. Google LLC, YouTube LLC, YouTube Inc., Google Germany GmbH (C-682/18), and Elsevier Inc. v. Cyando AG (C-683/18)
In his opinion in joined cases C-682/18 and C-683/18, Advocate General Saugmandsgaard Øe (the “AG”) advised the Court of Justice of the European Union (the “CJEU”) to rule that, under EU law as it existed prior to the adoption of Directive 2019/790, platforms like YouTube and Uploader should not be directly liable for making available any infringing user-generated content.
In particular, since Directive 2019/790 on copyright and related rights in Digital Single Market is not yet applicable to the cases at hand, the CJEU was invited to define the liability of those operators under the regime currently in force – that is, in light of Directive 2000/31 on electronic commerce, Directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society, and Directive 2004/48 on the enforcement of intellectual property rights.
Accordingly, the AG held that service providers that do not select or determine in any other way the content that is published on their platforms should not be directly liable for copyright infringement as a result of their users illegally uploading protected content. In fact, under Art. 3 of Directive 2001/29, operators like YouTube and Cyando do not carry out acts of communication to the public: they are intermediaries providing physical facilities that enable users to carry out such acts, and as a rule users should be the only parties bearing any direct liability for their acts.
Moreover, the AG noted that Directive 2001/29 is not intended to govern secondary liability (that is, the liability of those who do not commit any infringement themselves but facilitate third parties carrying out infringing acts). This kind of liability, which generally involves knowledge of unlawfulness, is governed by the national law of Member States.
Besides, under Art. 14 of Directive 2000/31 intermediaries such as YouTube and Cyando may benefit from the safe harbors set out for Internet service providers, meaning they are exempt from any liability arising from the content they store at the sole request of their users unless they were made aware of the illegal nature of their users’ activities and did not immediately remove that content or disable access to it.
The AG then specified that the awareness of the illegal nature of users’ activities must be specific; otherwise, service providers may de facto become judges of online legality and may discretionally “over-remove” content stored by them upon request of their users – including legal content.
Lastly, AG Saugmandsgaard Øe advised that, irrespective of liability, under EU law rights holders should be able to obtain effective injunctions against intermediaries operating online platforms like the ones at stake to put an end to copyright infringements. To this end, rights holders should not need to wait for an infringement to occur again or for an intermediary to show improper conduct before applying for such injunctions; rather, they should be in the position to do so whenever third parties infringe their rights through online platforms.
It remains to be seen how the CJEU will rule, with an eye to its previous decisions on the subject of ISP liability in online copyright infringement and most crucially in light of the Digital Single Market Directive (though that is inapplicable in the case in question as it only entered into force at a later date).